The Supreme Court Saved the GOP from Itself

In light of yesterday’s Supreme Court decision upholding Obamacare and today’s decision legalizing gay marriage, prevailing wisdom has it that the Obama administration and social movements it champions won a major victory. But the rulings did something much less obvious. These nine justices, but especially Republican members like Anthony Kennedy and John Roberts, almost single-handedly saved the Republican Party from itself.

Following decades of attempts to exploit social and culture war issues like abortion, women’s rights, capital punishment, gay rights, gun rights, etc. the GOP is increasingly on the wrong side of the divide. Its leaders outdo each other with ever more outlandish and extremist notions, which play well to their own particular narrow, regional constituencies, but don’t play at a national level.

White House alight with rainbow colors (Gary Cameron/Reuters)

The Republicans are an increasingly narrow Party which, while popular in pockets of the country, have no national constituency. That’s where the Supreme Court comes in. Imagine if these two decisions had gone the other way: Obamacare and gay marriage struck down. There would have been a huge outcry around the country. The 6-million Americans now covered by the new health plans would’ve mounted a revolt and demanded the heads of the Republicans, which would’ve rolled in the next election.

Similarly, the LGBT community nationally would’ve made its best effort to make the GOP pay for toppling gay marriage. Democrats, and especially Pres. Obama would’ve been handed a huge plum by their right-wing opponents. In effect, the latter would’ve been digging their own political grave.

That’s why Kennedy’s intervention in the gay marriage case and Roberts majority opinion in the Obamacare case are so important. In each, the majority ruling presented a moderate centrist position which looked to ratify a growing consensus around each issue. That’s why Justice Scalia was so appalled by Kennedy’s opinion. For Scalia, the Republican Party is a party of radical conservatives, not a moderate one. And he wants nothing to do with a Party of temporizers.

But Kennedy and Roberts did the Party an enormous favor. They allowed it, with these rulings, to remain relevant to American voters. That doesn’t mean that the Tea Party won’t come up with new hare-brained schemes (and we hope they will). But for now, the GOP saved itself from what might have been permanent implosion.

The future doesn’t look good, however. All the major GOP presidential candidates possibly excepting Jeb Bush, come from the outlandish stream of the Party. They oppose abortion, gay marriage, civil rights. They support guns and the police-military-national security state (with the exception of Rand Paul). They support states rights. These guys can’t win a national election. None of them. Frankly, I doubt Jeb Bush can.

That doesn’t mean I support Hillary Clinton. She is a fatally compromised candidate made of the same cloth as Roberts and Kennedy (with perhaps a slight liberal tint). But she will likely be the next president.

RE: “These nine justices, but especially Republican members like Anthony Kennedy and John Roberts, almost single-handedly saved the Republican Party from itself.” ~ R.S.

THE THANKS THEY’LL LIKELY GET: I can easily see decrepit billboards all along the back roads of the South once having read “Get The U.S. Out Of The UN” but now updated to read “Impeach John Roberts!”

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3 years ago

Mitchell Blood

Richard. You miss the forest from the trees.

The Supreme Court took from us, something fundamental this week, the right to govern ourselves.

Do we, the people, decide by debate and deliberation, through referendums, legislative action, protests, and other democratic activity, or, do nine lawyers without accountability to the people, decide the issue by majority vote.

This all important question isn’t about whether gay marriage is a good or a bad idea. Reasonable people can disagree about that. The all important question is: who decides?

@ Mitchell: You’re (unintentionally) hilarious! If I needed a reader/commenter to channel Scalia’s opinion I’d ask for one. You’re a one-man hasbara/GOP sandwich board here. The idea that the Supreme Court “legislated” or pre-empted the legislative process is preposterous. The justices did what they’ve always done throughout U.S. history. They used the constitution to adjudicate a legal issue. As for the notion that the justices are not “accountable,” that too is ludicrous. They are approved after intense & extensive hearings before the U.S. senate during which time they’re grilled on every possible legal issue the senators can think of. Further, the justices are always acutely aware of the political context of their decisions. That is precisely why Kennedy voted with (& created) the majority in this decision. He knows that not only do the majority of Americans favor gay marriage, he knows that this support will only increase over time.

As for who decides: when it’s a judicial question brought to the Supreme Court, they do. Ever since Marbury v. Madison it’s been that way. And thank God (& the constitution) for that.

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3 years ago

Dieter Heymann

Mitchell Blood is also monumentally ignorant of what a US Supreme Court ruling means. Take the case of Texas whose marriage laws still contain the stipulation of “only one man and one woman”. The Supreme Court has not made any new laws for the state of Texas. Only the Texas legislature and the governor can do that. The Supreme Court has ruled that the state of Texas can no longer execute the “only one man and one woman” restriction by a process known as Judicial Review which, as you have pointed out, was established by Marbury v. Madison. That judicial review for Obergefell concluded that the restriction is unconstitutional.
Who decides? Mitchell is again monumentally ignorant that the answer depends on the process. If a law, regardless whether it is a city, county, state, or federal law and regardless how that law came into being is not challenged then the legal deciders of the first round are always executives (e.g. governors, presidents) and not “we the people”. If the executives veto then legislatures can become the deciders in the second round by overriding the veto. Once again “we the people” decide nothing.
The first amendment establishes a right for every citizen (and possibly all residents) of our nation to ask for a judicial review of any law. Any law, period. It is known as the right to petition the government for redress of grievances. No legislator, no executive, no judge, and certainly not “we the people” can take that right away. It is a fundamental right. Marbury v. Madison has established that the first amendment right of petitioning can go all the way up to the US Supreme Court which is exactly what has happened in the case of Obergefell.

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3 years ago

Arie Brand

I hesitate to add a comment to this debate between Americans, and I only claim some right to do so by my passionate interest (as an outsider, yes) many years ago for the Supreme Court proceedings on Bush vs Gore.

I vividly remember Scalia’s role in these proceedings and the fact, as a recent comment has it, that “not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.”

Scalia, this “Archie Bunker in a high backed chair” (Maureen Dowd) then didn’t care about non-elected judges deciding for 320 million Americans, a concern that, I understand, he suddenly displayed in his recent opinion on the gay rights issue in which he whinged that the ruling “says that my ruler and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,…”

But of course when the issue touched his “eternal principles, like helping a son of the establishment dispense with the messiness of a presidential vote count” (Dowd) the “vox populi” was suddenly regarded as a pinchbeck imitation of the “vox dei”, a voice for which Scalia claims to have a special ear.

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3 years ago

Dieter Heymann

And “vox populi” will always be developed by demagogues into a “volksgerichthof”. Example: Senator Joseph Mc Carthy and his committee.

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